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THE LAW REFORM COMMISSION OF HONG KONG - page 76 / 360

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Parental appointment of guardians

3.31In the past, each parent could appoint a testamentary guardian to replace him on his death.296  The appointment took effect even if the other parent was still alive.  However, if the survivor objected, he could apply to the court to prevent the appointee from taking office.  The guardian could also apply if he considered the survivor unfit to have custody of the child.  The court could then order that the guardian or parent may act alone or both to act jointly.

3.32Under the Children Act 1989, a parent with parental responsibility297 may appoint an individual to be the child’s guardian in the event of his death.298  Appointments can be made only in respect of children under the age of 18.299  Although there is no express prohibition against making an appointment in respect of a married child, it is not clear whether the courts would make such an appointment in practice.  It seems that more than one individual may be appointed.300  An additional guardian may also be appointed at a later date.301

When the appointment takes effect

3.33The appointment will take effect immediately upon the death of the appointing person if that person was the only parent with parental responsibility at the time of his death.302  But if there is a surviving parent with parental responsibility, then the appointment will normally take effect upon the death of the sole surviving parent.303  The exception is when the deceased parent had a residence order in his favour and the surviving parent did not.  In such circumstances, the appointment will take effect immediately upon the death of the appointing person.304

3.34The purpose of the Act is to prevent the appointee attempting to exercise a control which cannot and should not be his if the child is not living with him.  Where the child had been living with both parents, the survivor does not have to share responsibility with the person appointed although he is always free to seek the assistance of the latter if he wishes to do so.  Any unnecessary conflicts between the survivor and the person appointed could thus be minimised.  In the event that the person appointed wishes to challenge a decision of the surviving parent, he may apply to the court for an order under section 8 of the 1989 Act.  However, if the surviving parent had also appointed a guardian, there can be conflicts between the two separately appointed guardians on the subsequent death of the survivor.

296 Guardianship of Minors Act 1971, section 4.  The provisions of this Act are similar to the provisions of the Guardianship of Minors Ordinance (Cap 13).

297 Therefore, an unmarried father without such responsibility would be excluded.

298 Section 5(3)(4).

299 Section 105(1).  Query whether an appointment would take effect once the child is married.

300 Interpretation Act 1978, section 6(c).

301 Section 6(1).

302 Section 5(7)(a).

303 Section 5(8).

304 Section 5(7)(b), (8)(b), (9).

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